Local 542, et al. Operating Engineers

National Labor Relations Board - Board Decisions

Mar 31, 1972

196 N.L.R.B. 1 (N.L.R.B. 1972)

LOCAL 542, ET AL. OPERATING ENGINEERS 1
Local 542, 542-A and 542-B, International Union of
Operating Engineers : and William E. Ciavaglia and
Joseph T. Szuchon, Jr. Case 4-CB-1817
March 31, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND KENNEDY
On October 12, 1971, Trial Examiner Lloyd S.
Greenidge issued the attached Decision in this pro-
ceeding dismissing the complaint in its entirety.
Thereafter the Charging Party and the General Coun-
sel filed exceptions, with copies of their briefs to the
Trial Examiner, and the Respondents filed an answer-
ing brief opposing the exceptions, together with a
copy of their brief to the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
ruling, findings, and conclusions only to the extent
consistent with this Decision and Order.
Basic to the problem here is the Respondent
Union's registered apprenticeship training program
for operating engineers . This was implemented in No-
vember 1965. Members who were oilers were solicited
as apprentices at that time, granted prior experience
for the time that they had been in the Union, and
placed in third and fourth year apprenticeship classes.
Later, nonmembers of the Union who were registrants
on a hire list were solicited as apprentices. In July
1966, Charging Party Szuchon was placed on the
Union's hiring list as an oiler, received the type of
book issued to nonunion oilers , and was referred to
the first of a number of jobs. In April 1967, he signed
an apprenticeship application, passed a test, was one
of those accepted, and a year later signed an appren-
ticeship agreement with the Joint Apprenticeship
Committee of Philadelphia, Eastern Pennsylvania,
and the State of Delaware, composed of three em-
ployers and the three union representatives.
The bargaining contract in effect at times pertinent
to the problem here is that between Respondent Un-
ion and certain associations of employers in the east-
ern half of Pennsylvania and in Delaware, areas
where the Respondent Union claims craft jurisdiction
over operating engineers engaged in building and
construction work.' As found by the Trial Examiner,
the contract, a 3-year agreement dated May 1, 1968,
recognizes the Union as the exclusive, primary source
of referrals for employment,2 provides for employer
contributions to an apprentice fund, and gives top
priority status in employment to apprentices so long
as they remain in the program.' Under the contract,
applicants for employment are classified in priority
groups 4 based on hours of employment and back-
ground and are to be referred nondiscriminatorily,
including no discrimination on the basis of union
membership, and in order of priority.
On March 27, 1969, the JAC notified Szuchon that
he had been eliminated from the apprenticeship pro-
gram, primarily for failure to attend classes . This was
done without knowledge that Szuchon had been in-
ducted into the Army shortly before. His father a
member of the Union, got a withdrawal card for him
and Szuchon was later notified that he would have 60
days after return from the service to appeal. In Octo-
ber 1969, having been discharged from the Army on
September 29, Szuchon again registered on the out-of-
work list, submitted his withdrawal card, and was
referred to jobs. Lather he received his registered ap-
prentice book by mail.
Later in October, the JAC became aware of
Szuchon's return from the service and set up an ap-
peal meeting at which Szuchon appeared. On Decem-
ber 3, 1969, Szuchon was notified that the decision to
eliminate him from the program was reconfirmed
"with no further right to appeal." This resulted in his
book being taken from him the next time he paid
dues, but he was permitted to work until March 1970,
before being discharged by his employer allegedly at
the request of the Union.' Szuchon then requested
union membership, which was denied because of the
December 1969 action of the JAC. A charge based
tractors Association, and the Pennsylvania Excavating Contractors Associa-
tion.
2 It is undisputed that the collective-bargaining agreement in question
contains an exclusive hiring hall arrangement.
3 The Union, on its part, apparently adopted procedures in August 1968
for the handling of "A" and "B" registrants , the latter being those who claim
to be qualified operating engineers . These procedures were written up, as of
May 1, 1969, as office procedures to eliminate confusion about the rules as
to referrals, and revised as of August 1, 1970. Pursuant to the latter revision
an apprentice removed from the program "will be removed from employ-
ment, all hiring hall referral lists, and will sever all present and future rela-
tionship with the Union."
4 There are four groups : Group I includes all who are indentured under
or have completed apprentice training ; it also includes all applicants with
5,000 hours of work in the area within the past 8 years, or 2,500 hours within
the past 3 years. Group I-A applies essentially to those who are over 50 years
of age . Group II applies to applicants with 2,500 hours of work in the area
within the past 12 years, or 400 hours per year during any 3 of the past 5 years,
or 400 hours during the past year. Group III applies to all other applicants.
"Hours worked as an R. A. [registered apprentice] will not count towards
2500 hours." This appears in the August 1, 1970, version of the procedures
referred to in In . 3, above.
s President Dawson testified that the Union's lack of interference with
Szuchon 's employment after eliminating him from the apprentice program
was on advice of counsel due to a pending complaint "of some kind" made
'The printed copy of the May 1, 1968, agreement shows these employers by Szuchon to the Veterans Administration. When this became a "dead
to be: The Contractors Association of Eastern Pennsylvania , United Con- issue," Szuchon was removed from employment.
196 NLRB No. 3
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereon was dismissed. During November 1970, Busi-
ness Agent Ciavaglia, who did not testify, denied Szu-
chon classification in any referral group, and, on
November 30, Szuchon wrote to Ciavaglia stating that
his application for registration in Group I had been
refused and requesting arbitration pursuant to article
II, section 2(m), of the contract .6 That letter went
unanswered and the instant charge was filed on
March 30, 1971. Complaint issued June 30, alleging
that Respondents violated Section 8(b)(1)(A) and (2)
by refusing to consider Szuchon's request for an ap-
pellate tribunal in response to his claim that he is a
qualified oiler entitled to placement "on a hiring list
and in a `Group' under the contract."
The Trial Examiner, conceding that "had Szuchon
remained a registrant he would in all likelihood be
working today," dismissed on the ground that the
evidence did not preponderate in favor of a finding
that Szuchon was singled out for disparate treatment
in the matter of referrals or that his differences with
the Union were factors in the treatment accorded
him 7 The Trial Examiner viewed Szuchon as having
lost the benefit of the exception made for "any regis-
trant on the out-of-work list before May 1, 1969"
because he voluntarily elected to give up the registrant
status he had on April 7, 1968, to enter the registered
apprentice program .8 The Trial Examiner also noted
that even though the Union was entitled by its own
procedures to bar Szuchon entirely from its referral
facilities after he was no longer an apprentice, it had
refrained from doing so for some months, which the
Trial Examiner interpreted as evidence of nondiscri-
minatory motive. Concerning the General Counsel's
theory that, pursuant to the contract, Szuchon had
sufficient hours for Group I registration, the Trial
Examiner viewed Szuchon's 3,800-hour estimate of
his total hours as meaningless , a "naked assertion" in
the absence of affirmative evidence of actual hours of
work apart from that done while under the apprentice
program.
6 This provides for an appellate tribunal "in the event any job applicant
is aggrieved with respect to the functioning of the hiring agreement ...."
In view of our decision and remedy herein , the request for an appellate
tribunal is moot.
r Another apprentice dropout, Charles Freeman, who left the program
after 4 or 5 months , was permitted reinstatement as an oiler when , in March
1968, he became delinquent in dues payments . Freeman had become a union
member in 1965 and started apprenticeship in 1966 . The Trial Examiner
exglained this result as within the exception for an "A-branch" member.
The General Counsel asked President Dawson to identify the union rules
in effect at the time Szuchon registered as an apprentice in April 1968.
Dawson in response referred to Resp . Exh. 11, the May 1, 1969, procedures,
which contain no penalty for removal from apprenticeship , as quoted in fn.
3, above, and no restriction upon counting hours worked as an apprentice,
as quoted in fn. 4 , above. Obviously both sets of rules, or procedures , as well
as the underlying action of the union executive board-which is said to have
been taken in August 1968-postdate Szuchon 's agreement to become an
apprentice . In the circumstances, and apart from other possible considera-
tions, we find that these come too late to deprive Szuchon of basic rights as
a unit employee under the contract.
In its exceptions the Charging Party contends that
removal from the registered apprentice program for
engineers cannot bar a qualified person from work as
an oiler, that there is no evidence that Szuchon is not
a qualified oiler, and that his referral to jobs after his
apprenticeship book was taken on December 3, 1969,
demonstrates his competency in his work as an oiler .9
The General Counsel excepts, among other things,
to the Trial Examiner's failure to credit Szuchon's
allegation of the total hours worked, as this estimate
was not contradicted by the Union, and asserts that
in view of the period of time involved and the number
of hours claimed, Szuchon qualifies for registration in
Group I or certainly Group II, and that even if ap-
prenticeship hours may lawfully be disregarded, Szu-
chon would at least qualify for Group III status for
referral purposes.10
In their answering brief, the Respondents support
the Trial Examiner in rejecting Szuchon's estimate of
hours worked, contending that job referrals result in
work of only a day or two, that the period involved
was one of little work in the construction industry and
that it included a no-contract strike, but in any event
that Szuchon could have produced his pay vouchers,
income tax returns, or pension and welfare records to
substantiate his estimate. Respondents also contend
that there no longer is an "Oilers" list-except for
those oilers who were members prior to the apprentice
program or those brought in by organizing an em-
ployer having oilers on its payroll-and, if registration
for work cannot be denied to oilers who drop out as
apprentices, the entire apprentice program will be-
come unworkable.
We find merit in the exceptions of the General
Counsel and the Charging Party concerning the fail-
ure to register Szuchon in an appropriate referral
group. There can be little doubt on this record that
Szuchon is qualified to work as an oiler, or that the
contract in evidence covers oilers as well as operating
engineers and their apprentices." Respondents' deni-
9 The duties of an oiler were defined by President Dawson , who is also a
member of the union executive board and of the JAC, as follows : "He is a
helper on a crane as a rule , on a truck crane . He would drive the front-end;
he would be a truck driver; he would assist the operator ; he keeps the
machine clean ; he is an assistant to the operator." Dawson 's testimony
applies primarily to a crane , a two-man operation.i s
The General Counsel concedes the propriety of Szuchon 's dismissal
from the apprenticeship program, whereas the Charging Party does not.
11 Under the contract the employers recognize the Union as collective-
bargaining agent for all persons performing work within the mechanical
jurisdiction of the Union " whether or not any of such persons are members
of the Union ." Mechanical jursidiction is further defined as covering the
erecting, operating, dismantling, and repairing of all mechanical equipment
used in the construction of buildings or other construction work as awarded
to the Operating Engineers Union and recognized by the Building Construc-
tion Trades Department of the A.F. of L.
Oilers are specifically mentioned in the contract provisions for employer
contributions to the welfare fund, the pension fund, and the apprentice fund,
said payments to be based on each hour of wages paid "to every operating
engineer , oiler and apprentice engineer" employed throughout the contract
period.
LOCAL 542, ET AL. OPERATING ENGINEERS
al of referral status to Szuchon had the effect of penal-
izing him because he tried the apprenticeship route
and was eliminated from it, for reasons unrelated to
ability. By contrast Respondent Union did not deny
referrals to oilers with work experience who had drop-
ped out of the apprentice program but were already
members of the Union." In the circumstances we con-
clude that Szuchon's failure to complete his appren-
ticeship as an operating engineer does not permit the
Union to deny him employment in the industry as an
oiler by prohibiting his use of an exclusive hiring hall
applicable to nonmembers as well as members.13 Un-
der the contract, providing for this hiring hall, the
Respondent Union and the employees had certain
rights and obligations. Remaining an apprentice was
not-under the contract-an employee obligation for
continued use of the hiring hall. Being classified in an
appropriate group for referral purposes-based on
hours worked or apprenticeship-was the right of a
unit employee. Respondent Union, on its part, had an
obligation to classify employees in priority groups and
to refrain from making referrals from these groups
based on union membership. We note that Respon-
dent Union, though possessed of the welfare fund
records which are earmarked by the contract for de-
termining group placement based on hours, failed to
refute testimony indicating that Szuchon had substan-
tial hours of employment as an oiler to entitle him to
registration, presumptively in Group I or 11.14 On the
Wage Group 8 of the contract covers "Oilers and Deck Hands."
12 Respondent Union was also accepting oilers as members in connection
with organizing drives.
13 See International Association of Heat & Frost Insulators & Asbestos Work-
ersflnsulation Specialties Corp.), 191 NLRB No. 38.
1 The contract provides that " the records of Local 542 Operating Engi-
neers Welfare Plan " shall be relevant in determining eligibility of applicants
for group registration . Respondents made no attempt to use such records to
refute Szuchon's testimony that he had "about 3800 hours" in November
1970, when he requested Group I status. Szuchon also testified that he got
his firstjob in July 1966, through the Local 542 hall, that he had been referred
to 20-25 jobs altogether , that he went back to the hiring hall in between jobs,
and that except during his approximately 6 months of military service, there
was no period when he was not available for work.
President Dawson admitted that Szuchon had "hours" before he went into
the apprentice program , but contended that he was not permitted to count
those gained during apprenticeship "because he was immediately put in
Group I status." Asked how many hours Szuchon had amassed before be-
coming an apprentice , Dawson said : "If I recall correctly, he did not have
2500 hours. Had he not gone into the registered apprentice program it is possible
that he would have qualified under these standards ...." (Emphasis supplied.)
The General Counsel then observed that he was not contending for a total
of 2,500 hours prior to the time Szuchon became an apprentice , and proceed-
ed to ask why Szuchon could not qualify now as an "A -registrant," to which
Dawson responded that Szuchon could not go back "in the mill" now, the
standards having changed and Szuchon having "lost his status for cause from
his own action."
We see nothing in the contract itself , or in the apprenticeship agreement
signed by Szuchon, to bar the counting of hours worked as an apprentice in
determining group eligibility. Though there is merit in the Respondents'
contention that the whole purpose of the apprentice program can be subvert-
ed by applicants who elect to stay within the program only long enough to
build up sufficient hours of priority employment for registration in Group
I on the basis of hours alone , we will not apply this restriction to Szuchon,
who became an apprentice before the Union imposed such restriction and
3
record here we find that Respondents' failure to reg-
ister Szuchon in an appropriate priority group, and to
refer him for work based thereon just as they would
an oiler with union membership who had dropped out
of the apprentice program for operating engineers,
constituted unlawful discrimination within the
meaning of Section 8(b)(1)(A) and (2).
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth herein,
occurring in connection with the operation of the hir-
ing hall provided in the contract between the Respon-
dent Union and the Association, have a close,
intimate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that the Respondents have engaged
in unfair labor practices in violation of Section
8(b)(1)(A) and (2) of the Act, we shall order that they
cease and desist therefrom, and take certain affirma-
tive action which will effectuate the policies of the
Act. We shall order the Respondents to grant Szu-
chon appropriate group status for referral under the
said collective-bargaining agreement and any applica-
ble renewal of it. In order to determine the appropri-
ate referral group, all hours worked by Szuchon on
jobs to which he was referred by the Union beginning
in July 1966, including those occurring between his
April 1968 entrance into apprenticeship and his
March 1969 expulsion from it, shall be counted, as
well as hours incident to jobs to which he would have
been referred had the Union continued to refer him
after March 1970. We shall also order that Szuchon
be made whole for any loss of earnings by reason of
the Respondents' failure to continue referring Szu-
chon to jobs as an oiler. The amount of backpay shall
be computed in accordance with the formula ap-
proved in F. W. Woolworth Company, 90 NLRB 289,
with interest as prescribed in Isis Plumbing & Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Local 542, 542-A and 542-B, International Un-
ion of Operating Engineers, is, and has been at all
times material a labor organization within the
meaning of Section 2(5) of the Act.
had been removed from the program before the restriction was publicized.
(See footnotes 3 and 8, above.) We also believe it appropriate that the hours
worked by Szuchon after expulsion from the program in March 1969 be
counted , as well as those involved in jobs to which he would have been
referred had the Union not secured his discharge in March 1970.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Contractors Association of Eastern Pennsyl-
vania is an employer association which admits to
membership firms engaged in interstate and intrastate
construction work, and the Association and each of
its members are, and at all time material have been,
employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
3. By denying to Joseph T. Szuchon, Jr., appropri-
ate group referral status pursuant to the collective-
bargaining contract with the Association because of
Szuchon's lack of membership in the Respondent Un-
ion and elimination from its apprentice program for
operating engineers, the Respondents have engaged
in unfair labor practices within the meaning of Sec-
tion 8(b)(1)(A) and (2) of the National Labor Rela-
tions Act, as amended.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondents, Lo-
cal 542, 542-A and 542-B, International Union of
Operating Engineers, its officers, agents, and repre-
sentatives, and William E. Ciavaglia, its business
agent, shall:
1. Cease and desist from:
(a) Denying Joseph T. Szuchon, Jr., registration in
an appropriate priority group under the collective-
bargaining contract between the Association and the
Respondent Union and referral to employment as an
oiler based upon such priority.
(b) In any like or related manner restraining or
coercing employees in the exercise of any right guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make whole Joseph T. Szuchon, Jr., for any loss
of pay he may have suffered because of the discrim-
ination against him, as provided in the Remedy sec-
tion of this Decision.
(b) Notify the Contractors Association of Eastern
Pennsylvania, in writing, with a copy to Szuchon, that
Respondents have no objection to Szuchon's employ-
ment as an oiler in view of his work experience as an
oiler before May 1, 1969, and will not discriminate in
his selection for employment because of his lack of
union membership and his participation in and elim-
ination from the apprentice program for operating
engineers.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all records pertaining to employment through its hir-
ing halls, including the records of Local 542 Operating
Engineers Welfare Plan which are germane to appro-
priate group placement for referral purposes, and all
records relevant and necessary to compliance with
above paragraph (a).
(d) Post at its business office, hiring halls, and meet-
ing places copies of the attached notice marked "Ap-
pendix."15 Copies of said notice, on forms provided by
the Regional Director for Region 4, after being duly
signed by Respondent Union's official representative
and by Business Agent Ciavaglia, shall be posted by
Respondent Union immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by Respondent Un-
ion to insure that said notices are not altered, defaced,
or covered by an other material.
(e) Mail signed copies of the attached notice to the
Association for posting by it and its members, if will-
ing, within the Pennsylvania-Delaware area of Re-
spondent Union's jurisdiction.
(f) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
15 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to grant Joseph T.
Szuchon, Jr., appropriate group referral status
based upon hours worked as an oiler, as provided
in our collective-bargaining agreement with the
Contractors Association of Eastern Pennsylva-
nia, and to refer him for employment as an oiler
in the same manner as we refer oilers who were
union members before May 1, 1969, and have
withdrawn from apprentice training.
WE WILL reimburse Joseph T. Szuchon, Jr., for
any loss of earnings suffered by him because of
LOCAL 542, ET AL. OPERATING ENGINEERS
our failure and refusal to give him appropriate
group referral status and to refer him to work.
LOCAL 542, 542-A and 542-B,
INTERNATIONAL UNION OF OPER-
ATING ENGINEERS
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by-any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1700 Bankers Securities Building,
Walnut & Juniper Streets, Philadelphia, Pennsylvania
19107, Telephone 215-597-7601.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE , Trial Examiner : This proceeding,
with all parties represented, was heard on August 17, 1971,
at Philadelphia, Pennsylvania, on the complaint of the Gen-
eral Counsel, issued on June 30, 1971,1 and the answer of
Local 542, 542-A and 542-B, International Union of Oper-
ating Engineers and William E. Ciavaglia.2 The only issue
litigated is whether the Respondents violated Section
8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act,
as amended, by failing and refusing to provide an "Appel-
late Tribunal" in accordance with a requirement in the
Union's collective-bargaining agreement with the Contrac-
tors Association of Eastern Pennsylvania, herein called the
Association, or to invoke the procedure related thereto, in
response to a claim by Szuchon that he is a qualified oiler
entitled to placement on a hiring list and in a "Group" as
set forth in the said agreement. Such conduct it is alleged
was based on "arbitrary, discriminatory, or bad faith con-
siderations" which adversely affected Szuchon's right to fair
representation and his employment opportunities in the in-
dustry. Respondents' answer denies that they have violated
the Act in any respect alleged herein. Briefs have been re-
ceived from the General Counsel, the Respondents, and the
Charging Party.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The Association, an employers' group with an office in
i The complaint is based on a charge filed by Joseph T . Szuchon , Jr., herein
called Szuchon or the Charging Party, on March 30, 1971 , copies of which
were duly served on the Union and Ciavaglia by registered mail on April 1.
5
Philadelphia, Pennsylvania, admits to membership firms
engaged in interstate and intrastate construction work. Such
Association is authorized to, and does, represent its mem-
bers in negotiating, executing, and administering collective-
bargain mg agreements with various labor organizations in-
cluding the Union. During the past year, members of the
Association purchased goods valued in excess of $50,000 in
interstate commerce. I find, upon the foregoing, that the
Association is, and has been at all times material, enga ed
in commerce within the meaning of Section 2(6) and (7f of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Union claims craft jurisdiction over operating engi-
neers engaged in building and construction work in the
eastern half of Pennsylvania and the State of Delaware,
more specifically, in the counties of Philadelphia, Delaware,
Bucks, Chester, and Montgomery. At present the categories
of union members include licensed journeymen operators
("Parent Body" book); registered apprentice ("RA book);
new equipment operators ("B" book; equipment yardmen
("C" book); surveyors ("D" book); and individuals who
were "bilers" and held an "A" book prior to 1966.
On January 14, 1965, the Union registered an apprentice-
ship training program with the Department of Labor and
Industry of the Commonwealth of Pennsylvania under stan-
dards approved by the Pennsylvania Apprenticeship and
Training Council and the Federal Committee on Appren-
ticeship. By letter dated November 10, 1965, Homer Daw-
son, president of the Union, notified all members of
meetings to be held in their respective districts for the pur-
pose of explaining the "recently established apprenticeship
training program' and advised that only oilers were eligible
for selection. While the initial appeal was directed to union
members, nonunion individuals who qualified as oilers were
also invited to, and did in fact, sign up for training as
explicated below.
In 1968, and on May 1, 1968, the Union executed a 3-year
collective agreement with the Association which, inter alia,
recognized the Union as the exclusive, primary source of
referrals for employment, provided for employer contribu-
tions to an Apprentice Fund, and accorded apprentices top
priority status for the purpose of employment as long as
they remained in the program. Under the agreement, the
Umon was required to select applicants for referral on a
nondiscriminatory basis from a register of applicants classi-
fied for priority purpose into four groups and to give priori-
ty in referrals to all applicants in a particular group over
those in a lower rated group. Among the criteria for de-
termining group priority were hours of employment and
background. The agreement also provided that the employ-
er could determine the competency and qualifications of
applicants for work and, in this regard, might reject a refer-
red applicant. It provided further that the employer might
bypass the referral procedure altogether and hire directly if
the Union was unable within 24 hours to fill its request 3
2 Herein called the Union and Ciavagha, respectively, and collectively
called the Respondents
3 The complaint does not attack the exclusive referral procedure.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Sequence of Events 4
Szuchon registered with the Union on July 1, 1966, and
was placed on its hiring list for employment. At that time,
he was given a permit or "green book," the type issued to
nonunion oilers, and subsequently referred by the Union to
the first in a total of about 22 jobs. On April 5, 1967, Szu-
chon signed an application for apprenticeship training and
therein agreed, if accepted, "to attend night school, and any
Saturday and Sunday practical training as required by the
J.A.C. and to pursue a course of study related to Appren-
ticeship in the Operating Engineers and to comply with the
Local Standard of Apprenticeship and any other rules or
regulations adopted by the Joint Apprenticeship Commit-
tee." About a year later, the application was approved and,
on April 17, 1968, Szuchon entered into an Apprenticeship
Agreement with the Operating Engineers Joint Apprentice-
ship Committee of Philadelphia, Eastern P^^ epgnsylvania and
the State of Delaware, the JAC herein.?/The agreement
provided that training thereunder would be "in accordance
with the terms and conditions of the Apprenticeship Stan-
dards which are made a part of this Agreement." The Stan-
dards, in turn, stipulate, among other things that the term
of apprenticeship shall be 4 years; that "each apprentice
shall be required to attend classes and/or pursue such other
studies as the Committee may direct; and failure to do so,
shall be deemed sufficient cause for dismissal or disciplinary
action of the apprentice by the Joint Committee"; and that
"the number of study hours, the subject matter, and the
practical training shall be regulated and controlled by the
Joint Committee."
Shortly after the co encement of apprenticeship train-
ing, Szuchon was assigned to a job on the night shift at
Peach Bottom, Maryland, which assignment continued for
a period of about 6 weeks ending approximately June 28,
1968. Szuchon commuted by automobile from his home in
King of Prussia , Pennsylvania, and predictably his atten-
dance at scheduled night classes dropped to a significant
degree. However, after the conclusion of the Peach Bottom
assignment, Szuchon's absence from classroom instructions
continued. The failure to attend classes was called to his
attention on several occasions by Robert Emrick, coordina-
tor of the JAC. In such conversations, Emrick explained to
Szuchon the obligations of an apprentice under the training
program and suggested that he apprenticeon the ball." Szuchon's
response was that he had many personal problems. The
matter was also discussed with Szuchon's father, a union
member, in two or three separate conversations between
May and October 1968. Briefly stated, Emrick told Mr.
Szuchon that his son's attendance was unsatisfactory and
warned that he would be dropped from the program if it did
not improve. In reply, Mr. Szuchon explained that the
young Szuchon had a problem with his car and was general-
ly "a little mixed up." Between April 17, 1968, and the end
of February 1969, there were 30 3-hour classes and 4 field-
training classes . In this period, Szuchon attended only seven
of the 3-hour classes and none of the 8-hour classes.
Sometime in February 1969, Emrick interviewed Szuchon
and soon thereafter presented his record to the JAC. Emrick
had concluded from conversations with Szuchon's instruc-
tors, people with whom he (Szuchon) worked, and from his
own investigation that Szuchon was not interested in the
apprenticeship program. Indeed, Mr. Szuchon related at the
hearing that his son considered the Monday night classes to
nless otherwise indicated , the findings in this section are based on
exhibits and credited testimony which is either admitted or undisputed
,T`he Committee is composed of three employer and three union repre-
sentatives
be useless as too much time was spent in showing motion
pictures, and that he "got disgusted with himself on going
to these classes." After reviewing the case, the JAC voted
unanimously to eliminate Szuchon from the training pro-
gram. Written notice of the decision was sent to Szuchon on
March 27, 1969, with advice of his right to appeal within 5
days of the notice. In the interim and on March 15, 1969,
Szuchon was inducted into the Army. Emrick first learned
of the induction in April from Mr. Szuchon and promised
to report the fact to the JAC. About this time , Mr. Szuchon
also requested and obtained from the Union a withdrawal
card for his son. By letter dated June 11, Emrick advised
Szuchon that, upon return from the service, he would have
60 days within which to appeal the decision. Szuchon was
discharged from military service on September 29, 1969, but
took no steps to communicate with the JAC. Instead, he
returned to the hiring hall where he exchanged the with-
drawal card for his registered apprentice book and request-
ed and was granted a listing on the out-of-work list.
Thereafter, Szuchon was again referred to jobs by the Un-
ion. Word of Szuchon's return reached the JAC, however,
and, on October 16, Emrick wrote Szuchon directing him to
be present at a meeting of the JAC on November 19, later
changed to November 26 upon a notice to all parties. Szu-
chon appeared at the November meeting and presented his
case.
By letter dated December 3, Emrick advised Szuchon
that:
The Committee took under consideration at their meet-
ing of November 26, 1969 your appeal to their earlier
decision eliminating you from the program. After hear-
ing your personal appeal and completely reviewing
your record , it is the decision of the Committee that
your appeal be denied, and that their original decision
eliminating you from the program be re-confirmed
with no further right to appeal.
Although his book was picked up shortly before or after
December 3, Szuchon continued to work in the industry for
about 3 months following the denial of his appeal without
interference from the Union. In March 1970, Szuchon was
discharged by his employer allegedly because his relation-
ship with the Union had terminated. Article XIV, section
6(b), of the constitution of the International Union of Oper-
ating Engineers provides, in pertinent part, that cancellation
of an apprentice 's aggreement for cause, after notice and
hearing, automatically cancels his membership in the Un-
ion. Szuchon was not a union member but, as a registered
apprentice, enjoyed Group I priority status as long as he
remained in the apprentice proramw And, under the
Union's Procedure for Handling 'A" Registrants, an ap-
prentice "removed from the Program for any reason will be
removed from employment, all hiring hall referral lists,
and will sever all present and future relationship with the
Union."
Later in the month, on March 26, the executive board of
the Union considered a request from Szuchon for union
membership submitted March 9 and voted to affirm the
December 3 action of the JAC and, consequently, to deny
the reqquest. Still later, on March 30, Szuchon filed a charge
with the National Labor Relations Board alleging that he
was discriminatorily discharged at the instigation of the
Unior, The charge was dismissed by the Region on May
18 and, on November 3, Szuchon's appeal from the dismiss-
al was denied. Within a few weeks following notice of the
final action, Szuchon delivered a letter, dated November 30,
to Business Agent Ciavaglia. It reads:
,See art Ii, sec 2 of the collective-bargaining agreement.
('.,tie 4-CB-1716
LOCAL 542, ET AL. OPERATING ENGINEERS 7
I have applied for registratiot >• in Group I under Arti-
cle II of the Collective Bargaining Agreement. You
have refused to accept my registration in Group I.
I, hereby , request that my claim [be ] arbitrated pur-
suant to Article II, Section 2(m) of the agreement.
There was no response to the request from Ciavaglia or any
other representative of the Union . The instant charge was
filed on March 30, 1971 , exactly 1 year after the earlier one,
and repeats , in substance , the allegations contained in the
letter of November 30.
Jose h Dolan , a field supervisor with the U .S. Depart-
ment of Labor in the Philadelphia area , testified that he had
assisted representatives of the Union and management in
developing a program for training engineer apprentices and
that the program thus formulated is registered with Pennsyl-
vania Apprenticeship and Training Council which operates
under the auspices of the Department of Labor , Bureau of
Apprenticeship and Training in accordance with U.S. Code,
Title 29 , § 50. Continuing, Dolan related that an effective
apprenticeship program should provide for , inter alia, or-
ganized instruction in technical subjects related to the trade
to be pursued concurrent with on-the-job work and the
guidance and foresight necessary to keep training abreast of
changing industry needs . Finally , he pointed out that the
government desires apprentices to be trained to think like
craftsmen and expects them to be aware of the rules and
regulations governing their craft.
C. Contentions and Discussion
Until 1966, the Union maintained something generically
called an Oilers list ("A" list) on which unemployed union
members and Registrants were listed.8 When the appren-
ticeship program was instituted the Oilers list was replaced
by a registered apprentice list except for incumbent union
members who were oilers ("A" book men). In time, the
Union found that it was unable to recruit applicants for
training due to the fact that many individuals with no inter-
est in the program signed in as "oilers" on the "A" registrant
list and thus deprived potential apprentices of opportunities
for employment and on-the-'ob training. Accordingly, it
was decided to discontinue the "A" registrant list or "A-
branch," effective May 1, 1969, and to retain only the reg-
istered apprentice branch for persons seeking employment.
And, in fairness to all concerned, it was also decided to
permit "A-branch" oilers then working and individuals who
`had started through the mill" as registrants prior to May
1, 1969, to continue as before in the belief that attrition
would take care of the matter. In this regard, the Local's
Procedure for Handling "A" Registrants provides that the
change "will not affect any registrant on the out-of-work list
before May 1, 1969."
As noticed above, the contract prescribed an order of
referral based on an applicant's group. The contract also
stipulated that an applicant indentured under the appren-
tice program qualified for Group I status as long as he
remained in the program; and, the Union's Procedure for
Handling "A" Registrants provides that an apprentice will
be removed from employment and all hiring hall referral
lists if he is dropped from the program.
It is clear that Szuchon was not placed on a hiring list or
referred to oiler work after March 1970. The General Coun-
sel contends that Szuchon was singled out for disparate
treatment in the matter of referrals because Charles Free-
man continued to receive referrals by the Union after he
had dropped out of the apprenticeship program. Freeman
8 There was also an operators list.
started to work in the industry in 1962 as an oiler on a green
book. He was initiated in Local 542 as an "A" book member
on April 27, 1965, became a registered apprentice in, 1966,
and voluntarily left the program 4 or 5months later. In
March 1968, Freeman became delinquent in the payment of
his dues. He was called before the examining board in June
1968, and, upon the payment of back dues, was reinstated
in good standing and permitted to resume his job as an oiler.
Freeman related that at a union meeting in December 1965,
President Dawson and other union officials told the group
that if union members became apprentices and later decid-
ed to leave the apprentice program because of dissatisfac-
tion or an inability to perform they would nevertheless
remain in the Union. Freeman, obviously, falls within the
exception applicable to "A-branch" members, and to
nonunion registrants who were in the mill before May 1,
1969.9 Szuchon forfeited his claim to the protection of the
exception as he was not a registrant as of May 1, 1969,
having voluntarily elected to give up his position on April
7, 196$, to enter the registered apprentice program. Howev-
er, had Szuchon remained a registrant he would, in all likeli-
hood, be working today. Further, as to this contention, it
must be noted that not only is there no evidence of any
denial of referrals to Szuchon after he was eliminated from
the program in March 1969, but the record affirmatively
shows that following his return from military service and
between September 29, 1969, and March 1970 the Union
referred him on several occasions. Finally, although it was
entitled to invoke the contractual provision which had strip-
ped Szuchon of his top priority status and to enforce its own
procedure for handling registrants which would have barred
him entirely from using its referral facilities, the Union re-
framed from doing so. In view of the foregoing, I cannot
find the evidence to preponderate in favor of a finding that
Szuchon was singled out for disparate treatment in the mat-
ter of referrals or that his differences with the Union were
factors in the treatment accorded him.
Another theory on which the General Counsel relies is
that whether or not Szuchon was refused referrals for rea-
sons relating to his removal from the apprentice program he
was nevertheless entitled to placement on a hiring list and
in a group because of hours worked and the Union s refusal
to register and refer him was unlawful because it contra-
vened provisions of the contract. As shown above, in the
November 30 letter to Ciavaglia, Szuchon requested reg-
istration in Group 1. Under article II, section 2, of the
collective agreement, to be eligible for a Group I listing an
applicant must have worked 5,000 hours in the past 8 years
or 2,500 hours in the past 3 years within the territorial
jurisdiction of the Union; a Group II listing requires a
showing of 2,500 hours of work in the past 12 years or 400
hours in the past year or in any 3 of the past 5 years; and
Group III embraces all other applicants. The Procedure for
Handling "A" registrants states quite clearly that "hours
worked as an R.A. will not count towards 2500 hours." At
the hearing, Szuchon testified that he later asked to be reg-
istered in Group II or Group III and estimated his total
hours of work to be about 3,800. This would appear to be
enough to qualify for a Group I rating. However, in the
absence of any affirmative evidence as to the number of
hours actually worked by Szuchon, exclusive of time spent
in the apprentice program, his naked assertion is meaning-
less and must therefore be rejected. Accordingly, I find that
the allegation and the contention in support thereof have
not been sustained.
9 On rare occasions , an employer will insist , and the Union will agree, that
the Union admit to membership all of its employees including oilers as a
condition precedent to the execution of a contract.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that the Union arbitrarily or dis-
criminatorily or in bad faith denied Szuchon an Appellate
Tribunal . Article II , section 2(m) of the collective agreement
states:
(m) In the event any job applicant is aggrieved with
respect to the functioning of this hiring agreement, he
may within ten (10) days following the occurrence of
the event which constitutes the basis for grievance, file
with the person in charge of registration and referral a
written statement of the grievance clearly and specifi-
cally setting forth the wrong or violation charged. An
Appellate Tribunal consisting of an Employer Repre-
sentative , a Union Representative and an Impartial
Chairman appointed jointly by the Employer and Un-
ion, shall consider such grievance and render decisions
which shall be binding . The Appellate Tribunal is au-
thorized to issue procedural rules for the conduct of its
business but is not authorized to add to, subtract from,
or modify any of the provisions of this agreement and
its decision shall be in accord with the agreement.
During the hearing , counsel for the Respondents repeated
an earlier offer to convene an Appellate Tribunal to hear the
grievance but it was rejected by the General Counsel. By
way of amplification o his position , the General Counsel
asserted that the offer was insufficient "to cure the wron"
Ikebecause it did not provide for backpay , presumably in th
event Szuchon was successful in the appeal . He did not stop
to explain , however, how a question of backpay can possibly
arise in view of the Regional Director 's dismissal of the
earlier charge and the absence of any claim or evidence here
that Szuchon was denied a referral to an available job. Since
the General Counsel has refused to accept what he alleged
was unlawfully denied to Szuchon , I find the question of an
Appellate Tribunal to be a moot issue.1°
The General Counsel concedes in his brief that the action
of the JAC in dropping Szuchon from the apprenticeship
program was just and proper and no issue is presented by
him with regard to the propriety of that action ." However,
it is the position of the General Counsel that Szuchon's
dismissal from the program because of disinterest and un-
willingness to comply with the rules and regulations gov-
erning its operation provides no basis for the Union to
thereafter unconditionally deny him access to its hiring hall
and that in barring Szuchon entirely from the hall the Union
violated the Act.
The law is clear that a statutory exclusive bargaining
agent is charged by the Act with the duty to make an honest
effort to represent all employees in the appropriate unit
without hostility to any and that a breach of the statutory
duty of fair representation occurs when a union 's conduct
toward a member of the unit is arbitrary , discriminatory, or
in bad faith . 13 In its latest pronouncement on the subject the
10 In the light of this finding , I deem it unnecessary to and do not pass
upon the Union's alternative contention that the Appellate Tribunal provi-
sion deals with disputes between job applicants and prospective employers
and is not applicable to grievances involving matters between applicants and
the Union.
"Counsel for the Charging Party asserted at the hearing that Szuchon
seeks only to return to his trade as an oiler and, inferentially, does not desire
reinstatement in the apprenticeship program. In any event, it appears that
Szuchon is not eligible for selection under certain standards as he is not a
high school graduate.
2 Citing International Association of Heat and Frost Insulators and Asbestos
Workers, Local No. 5, AFL-CIO (Insulation Specialties Corp), 191 NLRB No
38.
13 See Humphrey v. Moore, 375 U S 335, 349-350; Ford Motor Company
v Huffman, 345 U.S 330, 337-339; Steele v. Louisville & Nashville Railroad
Co, et a!, 323 U S 192, 204; Miranda Fuel Company, Inc, 140 NLRB 181,
185, enforcement denied 326 F.2d 172 (C.A 2).
Supreme Court has defined the duty of fair representation
as 'a statutory obligation to serve the interests of all mem-
bers without hostility or discrimination toward any, to exer-
cise its discretion with complete good faith and honesty, and
to avoid arbitrary conduct."14
The fact that, so far as the record shows, the Union con-
tinued to refer Szuchon regularly even after he had been
dropped from the apprentice program, and the further fact
that, although entitled to do so, it did not until about a year
later invoke against him its procedure for denying access to
the hiring hall, amply attest to its good faith. It is concluded,
therefore, that the Union's action herein was not unfair,
irrelevant or invidious so as to warrant a finding that it
violated Section 8(bxl)(A).15
It is axiomatic that Section 8(b)(2) is violated when a
union causes an employer to discriminate because of an
employee's union attitude. However, as noted above, it is
not charged that the Union's treatment of Szuchon was
related to his lack of membership in the Union or proved
that its conduct towards him had anything to do with the
controversy in issue . We thus come to the further proposi-
tion that any union-caused action adverse to an employee,
even if unrelated to his union status, violates Section 8(b)(2)
unless it is shown that such action had some lebgitimate
business or union purpose. In the Local 357 case,' the Su-
preme Court ruled that a union hiring hall had a legitimate
business purpose and that a contract provision giving it
exclusive referral privileges is not per se violative of Section
8(b)(2). It is manifest, therefore, that in the circumstances
here present the ultimate test as to the legality of union-
caused action under Section 8(b)(2) is whether such action
had a legitimate business or union purpose.17 In this case,
the objective of the hiring hall clause was to provide the
industry with a supply of skilled craftmen developed under
an apprenticeship training program the success of which is
a matter of paramount concern to the Federal Government
and the Commonwealth of Pennsylvania. I find that the
Union's treatment of Szuchon was calculated to promote
that objective.'s It follows that, here, as in Local 357, the
Union's action was for a legitimate business purpose.
In view of the foregoing and on the record as a whole, I
find that the Union acted within the "wide range of reasona-
bleness" allowed a bargaining agent in serving its constitu-
ents and with "good faith and honesty of purpose in the
exercise of its discretion." 19 I find further and conclude that
neither the Union nor Ciavaglia 20 violated Section
8(b)(1)(A) or 8(b)(2) of the Act?'
Accordingly, having found that the Respondents did not
" Vaca v. Sipes, 386 U.S. 171, 177
15 See Miranda Fuel Company, Inc., 140 NLRB 181, 185
16 Local 357, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America v N.L.R B, 365 U S. 667
17 See Miranda Fuel Company, Inc, supra
is Cf Daugherty Company, Inc., 112 NLRB 986, 1004 ; Local 367, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO, 134 NLRB 132, 135;
Painters District Council No 3, Brotherhood of Painters, Decorators and Paper-
hangers of America, AFL-CIO, 147 NLRB 79, 88-89
1 Ford Motor Company v. Huffman, supra., 338
20 International Association of Heat and Frost Insulators and Asbestos Work-
ers, Local No. 5, AFL-CIO, supra, relied on by the General Counsel, is readily
distinguishable in that the union there was derelict in failing to advise the
discriminatee of what he was required to do under the contract to qualify for
registration and referral Here, as found , Szuchon was specifically informed
from the beginning of his obligations and responsibilities under the appren-
ticeship agreement and the rules and regulations pertaining thereto but chose
to ignore them.
2 Apart from the receipt of the November 30 letter , the record stands
barren of any act or statement by Ciavaglia
LOCAL 542, ET AL. OPERATING ENGINEERS 9
engage in any of the alleged violations , I shall dismiss the
complaint.
CONCLUSIONS OF LAW
1. Local 542, 542-A and 542- B, International Union of
Operating Engineers is, and has been at all times material,
a labor organization within the meaning of Section 2(5) of
the Act.
2. The Contractors Association of Eastern Pennsylvania
is, and has been at all times material , engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The Respondents have not engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) or 8(b)(2)
of the National Labor Relations Act, as amended.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in the case, and pursuant
to Section 10(c) of the Act, I hereby issue the pursuant
recommended:
ORDER
The complaint is dismissed in its entirety.